Citation: R v Steven Ray HUGHES [2008] NSWDC 361
Court: District Court of New South Wales
Date: 24 September 2008
Judge(s): Cogswell SC DCJ
Background
The offender had previously been sentenced on 5 September 2008 in respect of two separate offences. Due to an oversight at that hearing, a third charge had not been placed before the court for consideration. That charge was possessing an offensive implement in a public place without reasonable excuse, specifically a small black replica handgun.
The matter was brought back before Cogswell SC DCJ to deal with the outstanding charge. Both the prosecution and defence agreed that a custodial sentence was appropriate and jointly proposed that the sentence be backdated to align with the commencement date of the earlier sentences.
Legal Issues
- Whether the outstanding offensive implement charge could be dealt with as a related offence under s 167 of the Criminal Procedure Act 1986
- What sentence was appropriate for possessing an offensive implement (a replica handgun) in a public place without reasonable excuse, contrary to s 11B(1) of the Summary Offences Act 1988
- Whether a non-parole period should be set
Decision
Cogswell SC DCJ dealt with the charge under s 167 of the Criminal Procedure Act 1986, which permits a court to deal with related offences together. Both parties supported a custodial sentence, and the court accepted that approach.
The court imposed a sentence of seven months imprisonment, backdated to commence on 21 July 2007 and expiring on 20 February 2008. This meant the sentence was concurrent with the existing custodial term already being served by the offender.
No non-parole period was set. The court gave two reasons for this: the sentence had already expired by the time it was formally imposed, and the sentence ran concurrently with an existing custodial sentence or non-parole period. The judge acknowledged that the proceeding was largely a formality from the offender's perspective, but emphasised the need to formally resolve the outstanding charge.
Orders Made
- The offender sentenced to seven months imprisonment for possession of an offensive implement (replica handgun) in a public place without reasonable excuse
- Sentence backdated to commence 21 July 2007 and expire 20 February 2008
- No non-parole period set
- Sentence to run concurrently with existing custodial sentence
Key Takeaways
- The District Court exercised its power under s 167 of the Criminal Procedure Act 1986 to deal with a related charge that had been overlooked at an earlier sentencing hearing, confirming that such charges can be addressed after sentence has been passed on connected matters.
- Possession of an offensive implement in a public place under s 11B(1) of the Summary Offences Act 1988 carries a maximum penalty of two years imprisonment, making a custodial sentence available even for items such as replica handguns.
- Where a sentence has already expired by the time it is formally imposed, a court may decline to set a non-parole period on that basis, particularly where the sentence runs concurrently with another existing term.
- Backdating a sentence to align with the commencement of related sentences is a recognised approach when dealing with overlooked charges, ensuring the offender is not penalised twice for the same period of custody.
- Sufficient consensus between prosecution and defence on the appropriate sentencing approach can inform, though does not bind, the court's exercise of its sentencing discretion.
Legislation and Cases Referenced
Legislation:
- Summary Offences Act 1988 (NSW), s 11B(1) (possession of an offensive implement in a public place without reasonable excuse)
- Criminal Procedure Act 1986 (NSW), s 167 (dealing with related offences)
Cases:
- R v Steven Ray HUGHES [2008] NSWDC 360 (the related sentencing decision for the earlier two offences)